PA, R (on the application of) v Governor of Her Majesty's Prison Lewes

For the purposes of a policy allowing exceptional home detention curfew release, whether a prisoner is infirm by nature of disability is a value judgment informed by the ordinary meaning of “infirm” and the policy’s exceptional context. The term is not a medical classification and does not encompass every serious physical or mental disability. The decision-maker must consider the consequences of the condition, the way in which it affects the prisoner in custody, and the rarity of exceptional release. A prisoner may have a recognised and debilitating mental illness without being infirm within the policy. The Governor was entitled to conclude that the claimant’s social phobia, although disabling, did not make him infirm. The refusal of home detention curfew was therefore lawful.

The claimant sought judicial review of the Governor’s refusal to release him on home detention curfew. He was serving a three-year sentence and had a recognised social phobia. His offending fell within a category presumed unsuitable for home detention curfew, but the applicable policy allowed release where exceptional circumstances existed.

The claimant relied on the policy’s example of exceptional circumstances requiring an extremely low likelihood of reoffending, no previous convictions, and infirmity by reason of disability or age. The first two features were accepted. The central issue was whether his social phobia made him infirm by reason of disability, and whether the Governor’s reconsideration and use of further psychiatric material were lawful.

1. Meaning of “infirm”. The phrase “infirm by nature of disability” had to be construed in the context of a policy directed to prisoners whose offences made release presumptively unsuitable, where exceptional cases were intended to be rare and to stand out. “Infirm” was not a medical term. It described, in ordinary language, the consequences of a physical or mental condition, including being ailing, debilitated, feeble or frail.
2. The word was not directed to indecisiveness, insecurity, lack of purpose or similar characteristics. Nor did the existence of a serious disability automatically establish infirmity. The question required a value judgment on the particular circumstances.
3. The Governor was entitled to find that the claimant’s social phobia, though a recognised and debilitating mental illness, did not make him infirm. The claimant managed aspects of prison life, attended guitar lessons and family visits, and his anxieties were substantially contained by the arrangements made in custody. It was not inevitable that the statutory and policy criteria were satisfied.
4. The Governor had been aware of the claimant’s decision to remain in closed conditions; that peripheral matter did not require express treatment in his reasons. The failure to provide Dr Ardron’s report before the final reconsideration did not create a public law error, given the continuing reconsideration process and the circumstances in which the report was obtained.
5. The arguments under the Equality Act 2010, Disability Discrimination Act 1995 and articles 8 and 14 of the European Convention on Human Rights were not pursued. The claim was dismissed, with the usual public funding order and no order for the defendant’s costs.